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Duwai v Minister for Immigration & Multicultural Affairs [1999] FCA 1309 (16 September 1999)

Last Updated: 21 September 1999

FEDERAL COURT OF AUSTRALIA

Duwai v Minister for Immigration & Multicultural Affairs [1999] FCA 1309

MIGRATION - objection to competency - whether application was filed more than twenty-eight days after applicant notified of decision - requirements of notice under s 478(1)(b) of Migration Act 1958 (Cth) - whether s 478(2) of Migration Act creates a jurisdictional bar to an application filed outside the twenty-eight day period.

Migration Act 1958 (Cth), ss 200, 201, 475(1), 476(1), 478(1), 478(2), 485(1), 501, 502

Judiciary Act 1903 (Cth), s 39B

Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, followed

Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386, followed

Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550, followed

WAISEA DUWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 706 OF 1999

JUDGE: SACKVILLE J

PLACE: SYDNEY

DATE: 16 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 706 OF 1999

BETWEEN:	WAISEA DUWAI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	16 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 706 OF 1999

BETWEEN:

WAISEA DUWAI

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:	SACKVILLE J
DATE:	16 SEPTEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The Proceedings

1 This is the hearing of a notice of objection to competency filed by the respondent ("the Minister") on 27 July 1999. The Minister objects to the jurisdiction of this Court to determine an application for an order of review filed by the applicant on 21 July 1999. The grounds specified in the notice of objection to competency are that the application was filed more than twenty-eight days after the applicant was notified of the relevant decision, and that s 478(2) of the Migration Act 1958 (Cth) ("Migration Act") expressly precludes the Court from allowing the applicant to lodge his application outside the twenty-eight day period specified in s 478(1)(b) of the Migration Act.

2 The application, which was filed at a time when the applicant was in immigration detention, does not precisely identify the decision under challenge, but it does refer to a "decision to cancel my permanent residence visa in Australia". This is clearly a reference to a decision made by the Minister on 16 October 1998, pursuant to s 501 of the Migration Act, to cancel the applicant's Transitional Permanent Visa, granted on 25 September 1989. The application asserts that the applicant does not recall being handed the document by the Department of Immigration and Multicultural Affairs, and claims that he was not notified about the cancellation of his visa. The application does not identify any substantive grounds upon which the Minister's decision to cancel the visa should be set aside.

Legislative Framework

3 At the relevant time, the Migration Act contained the following provisions:

"475(1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:
...
(c) other decisions made under this Act, or the regulations, relating to visas.
...
478(1) An application under section 476 or 477 must:
(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.
(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).
...
485(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.
...
501(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a) subsection (2) applies to the person; or
(b) ...
(2) This subsection applies to a person if the Minister
(a) having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character; or
(b) ....
(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
...
502(1) If:
(a) the Minister, acting personally, intends to make a decision:
(i) ...; or
(ii) under section 501; or
(iii) ...
in relation to a person; and
(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;
the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.
(2) A decision under subsection (1) must be taken by the Minister personally.
(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made."

Background

4 The applicant was born in Lautoka in Fiji, on 2 October 1975. He arrived in Australia on 27 April 1983, with his family. Following a period of temporary residence in Australia, he returned to Fiji with his family in April 1986. The family re-entered Australia on 3 February 1987 and the applicant was granted resident status on 25 September 1989.

5 On 12 April 1995, the applicant pleaded guilty in the District Court of New South Wales at Sydney, to three charges of armed robbery committed over a three day period in November 1994. Following this plea, he was sentenced to a minimum term of three years imprisonment, with an additional term of eighteen months. The minimum term of imprisonment commenced on 15 November 1994, and expired on 14 November 1997.

6 On 16 December 1996, a delegate of the Minister made a deportation order, pursuant to s 200 of the Migration Act. The order was made on the basis that the applicant was a non-citizen, who had been in Australia as a permanent resident for a period of less than ten years and had been convicted in Australia of an offence for which he had been sentenced to imprisonment for a period of not less than one year: see s 201.

7 On 10 January 1997, the applicant applied for a review of that decision by the Administrative Appeals Tribunal ("AAT"). On 9 March 1998, the AAT set aside the decision that had been made under s 200 of the Migration Act. The matter was remitted to the Minister with a direction that the applicant not be deported.

8 On about 1 April 1998, the applicant was charged with the offence of robbery in company. On about 18 August 1998, the applicant was given notice of the Minister's intention to cancel his visa, pursuant to s 501 of the Migration Act. The applicant was invited to submit any comments he thought were relevant to a consideration of the cancellation of his visa. The applicant did not respond to that invitation.

9 On 16 October 1998, the Minister made a decision to cancel the applicant's visa. The Minister found that, having regard to the applicant's past criminal conduct, he was not a person of good character (Migration Act, s 501(2)(a)(i)). The Minister declined to exercise his discretion not to cancel the applicant's visa. The Minister issued a certificate, pursuant to s 502 of the Migration Act, declaring the applicant to be an "excluded person".

10 According to evidence adduced on behalf of the Minister, a notice of visa cancellation, dated 22 October 1998, was served on the applicant on 4 November 1998, at the Metropolitan Reception and Remand Centre, Silverwater ("MRRC"). The notice was in the following form:

"NOTICE OF VISA CANCELLATION
UNDER SECTION 501 OF THE MIGRATION ACT 1958

On 18 August 1998 I informed you that the Minister for Immigration and Multicultural Affairs intended to personally examine whether there were grounds to cancel your visa under section 501 and declare you as an excluded person under section 502 of the Migration Act 1958 (the Act).
As you did not respond to the Department's invitation to provide comments on the possible cancellation of your visa, a decision has been made by the Minister based on the information held by the Department. The Minister for Immigration and Multicultural Affairs has taken into consideration all the individual circumstances of your case and has decided to cancel your visa on the ground that you are not of good character under section 501(2)(a)(i) of the Act. The Minister has also declared you to be an excluded person under section 502 of the Act and you therefore have no access to review of this decision by the Administrative Appeals Tribunal.
You are eligible to apply to the Federal Court of Australia for a review of this decision. You must make any such application with a Registry of the Federal Court within 28 days of the date that this notice was served on you. The addresses and contact telephone numbers of Registries of the Federal Court are included in the attachment to this notice.
As you are currently serving a criminal sentence, at the end of your sentence, you will be taken into immigration detention (under section 189 of the Act) and held until you are removed from Australia. You may be eligible to apply for a bridging visa.
You should discuss the question of lodging an application for a bridging visa with the immigration officer serving this notice.
As your visa has been cancelled, you can only apply for another visa if it is prescribed under Section 48 of the Act. The prescribed classes are specified in Regulation 2.12 of the Migration Regulations 1994 and are:
* Change in Circumstances (Residence)
* Citizens of Former Yugoslavia (Temporary)
* Protection (in some circumstances)
* Medical Treatment (in some circumstances)
* Sri Lanka (Temporary)
* Territorial Asylum (Residence)
* Border (Temporary)
* Special Category (Temporary)
* Bridging A
* Bridging B
* Bridging C
* Bridging D
* Bridging E
If you think you may be eligible to apply for a visa in one of the above classes, you should tell the immigration officer serving this notice whether you intend to apply, or you should contact the nearest office of the Department of Immigration and Multicultural Affairs as soon as possible."

11 On 16 February 1999, the applicant was sentenced in the District Court of New South Wales at Penrith, to a minimum term of one year and three months imprisonment, with an additional term of one year and nine months imprisonment. The minimum term commenced on 1 April 1998 and expired on 30 June 1999. On the latter date, the applicant was taken into immigration detention.

12 The present application was filed on 21 July 1999, nearly nine months after the Minister says that the applicant was served with the notice of visa cancellation. On 27 July 1999, the notice of objection to competency was filed on behalf of the Minister.

Was the Notice of Visa Cancellation Served?

13 The applicant read an affidavit sworn by him. In the affidavit he says that he does not remember being handed the notice of visa cancellation, and claims that he did not see the notice on or about 4 November 1998. He also claims that he did not receive the notice "in the way that I could respond to it in a proper manner".

14 The applicant's affidavit is couched in somewhat equivocal language, although it is capable of being understood as a denial that he received the notice. However, in the affidavit, he does not deny that his signature appears on an acknowledgment of receipt of the notice of visa cancellation. The acknowledgment is dated 4 November 1998, and is witnessed by "R Gillett".

15 Mr Gillett, an Administrative Officer with the Department of Immigration and Multicultural Affairs, gave evidence and was briefly cross-examined by the applicant. While he had no specific recollection of serving the applicant with the notice of visa cancellation, he was able to say, on the basis of his inspection of the file, that he had attended the MRRC on 4 November 1998, between the hours of 9 and 10 am, for the purpose of serving the applicant with written notice of the Minister's decision. He also gave evidence that he obtained the applicant's written acknowledgment of receipt of the notice, although his evidence to that effect was based on the documents in the file. He identified his signature on the acknowledgment as a witness to the signature of the applicant.

16 The applicant in his oral evidence denied having received the notice, claiming that if he had he would have notified his family. He accepted that the signature on the acknowledgment looked like his, but claimed that he had not been served with the notice.

17 In my view, the probabilities strongly favour acceptance of Mr Gillett's evidence. The applicant was being held in custody at the MRRC on 4 November 1998. There is no plausible explanation as to how a signature like that of the applicant came to appear on the acknowledgment, unless the applicant himself had signed the document. The signature itself is very similar to the applicant's signature on his affidavit sworn for the purposes of these proceedings. Mr Gillett confirmed that his signature appeared on the acknowledgment as a witness and there is no reason not to accept that evidence. A letter on the Departmental file of 3 November 1998 records Mr Gillett's intention to attend the MRRC the following day. There is thus contemporaneous documentation supporting Mr Gillett's version of events.

18 In these circumstances, I accept Mr Gillett's evidence and I reject the applicant's claim that he did not receive the notice (although it is possible that he has forgotten that he was in fact served with it). I find that the notice of visa cancellation dated 22 October 1998 was handed to the applicant on 4 November 1998 at the MRRC.

Effect of the Notice

19 The applicant, in his affidavit (which was apparently drafted with legal assistance), contends that the notice of visa cancellation was not a proper notification, since it provided no details of the decision, such as the grounds or the findings made by the Minister. It has been decided by a Full Court that a decision will be notified for the purposes of s 478(1)(b) of the Migration Act at the time the applicant is served with a document setting out the decision, as distinct from the reasons for the decision: Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164, at 167, per Jenkinson J; at 178, per Beazley J; contra, at 175, per Lee J. As was said in a subsequent case (Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386 (Merkel J), at 390):

"it should be taken to be established that, for the purposes of s 478(1), a person is notified of a decision of the RRT...when the substance or outcome of the decision is actually communicated to the person adversely affected by it."

20 The notice of visa cancellation in the present case accurately communicated to the applicant the substance or the outcome of the decision. The notice also clearly stated that the applicant was eligible to apply to the Federal Court for review of the decision, but that any such application had to be made within twenty-eight days of the date of service of the notice. It is true that the notice did not specifically identify the date the Minister's decision had been made, but I do not think that was a material omission, having regard to the clear statement that the applicant had twenty-eight days from the date of service of the notice in which to apply for review.

21 In these circumstances, s 478(1) of the Migration Act creates a jurisdictional bar to this Court hearing the application for review of the Minister's decision. As Beaumont J said in Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550, at 553,

"the imposition of the time limit prescribed by s 478(1)(b) is, in truth, a jurisdictional fact with the consequence, inevitably, that, unless that event occurs, that is to say, unless an application is lodged within the 28 day period, this court has no jurisdiction in the matter."

Counsel for the Applicant:	Self

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	14 and 16 September 1999

Date of Judgment:	16 September 1999